Don’t reduce age of consent in Pocso to 16, Law Commission tells govt
Law has to ensure a delicate balance between the evolving capacities of children and the need to protect them from harm, the Law Commission said
NEW DELHI: The Law Commission of India has recommended against reducing the age of consent under the child sex abuse law to 16 years but proposed an amendment that would let courts impose a lesser sentence in cases where adolescents engage in consensual sexual relations with a female.
The Protection of Children from Sexual Offences (Pocso) Act currently stipulates a minimum jail sentence of 10 years for penetrative sexual assault of a minor.
“Adolescents in the age bracket of 16 to l8 years still remain children who ought to enjoy higher protection of law and the age of consent cannot be disturbed either by reducing it or introducing a limited exception,” the commission headed by justice (retd) Ritu Raj Awasthi said in its report to the law ministry.
The panel’s recommendation comes amid a swirling debate over the age of consent under Pocso. In the past few years, a number of high courts have expressed concern that consensual relationships between teenagers were getting criminalised under the stringent 2012 law meant to protect children from sexual violence.
In his letter to law minister Arjun Singh Meghwal, the panel chairman said they started the exercise to study the relevant provisions following a reference received from the Karnataka high court in November 2022 recommending a rethink on the age of consent, “taking into consideration the rising number of cases relating to minor girls
above the age of 16 years falling in love, eloping and having sexual intercourse with the boy” that led to Pocso cases. In April this year, the commission received a letter from the Madhya Pradesh high court, arguing that the
enforcement of Pocso Act, in its present form, “causes gross injustice in cases of statutory
rape where de facto consent is present”. The MP high court suggested “vesting discretionary power in the (Pocso) special judge to not impose the statutory minimum sentence in cases where de facto consent is apparent on part of the girl”.
In line with this suggestion, the commission concluded that such cases “did not deserve to be dealt with the same severity as the cases that were ideally imagined to fall under the Pocso Act” and recommended the introduction of “guided judicial discretion” in the matter of sentencing in such cases. “This will ensure that the law is balanced, thus safeguarding the best interests of the child,” the commission said, listing the factors that the special judge will keep in mind while ruling on the sentence in case of convictions in such cases.
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